Excerpt:.....article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution.
- 9(3) of the act, he filed his claim which was considered by the land acquisition collector on merits before the award was given by him and thereafter the plaintiff filed an application for reference which too has been allowed by the district court and the plaintiff is satisfied by the enhancement as he did not file any further appeal in this court. ' 5. on the facts of the present case, we find..........punjab for the construction of houses for landless labourers. thereafter, an award was made by the land acquisition collector. avtar singh was dissatisfied with the compensation awarded by the collector and he filed an application for reference under section 18 of the land acquisition act, 1894 (hereinafter called the act) and ultimately, the district court enhanced the compensation. in the meantime, avtar singh filed a civil suit to challenge the acquisition as also the award of the collector, on the ground that no notice was issued to him under s. 4 of the act and the notice issued under s. 9(3) of the act was short of 15 days and as such the award of the collector was illegal and void. the suit was opposed by the state and it was specifically pleaded that the plaintiff filed a claim.....

Judgment:

Gokal Chand Mittal, J.

1. The land of Avtar Singh was acquired by the State of Punjab for the construction of houses for landless labourers. Thereafter, an award was made by the Land Acquisition Collector. Avtar Singh was dissatisfied with the compensation awarded by the Collector and he filed an application for reference under Section 18 of the Land Acquisition Act, 1894 (hereinafter called the Act) and ultimately, the district Court enhanced the compensation. In the meantime, Avtar Singh filed a civil suit to challenge the acquisition as also the award of the Collector, on the ground that no notice was issued to him under S. 4 of the Act and the notice issued under S. 9(3) of the Act was short of 15 days and as such the award of the Collector was illegal and void. The suit was opposed by the State and it was specifically pleaded that the plaintiff filed a claim before the Land Acquisition Collector in pursuance to notice under S. 9(3) of the Act, and compensation was allowed thereafter. It was also pleaded that the plaintiff had sought a reference under S. 18 of the Act and under these circumstances, the award of the Land Acquisition Collector could not be held to be null and void. The trial Court as also the first appellate Court found no merit in the suit and dismissed the same. The plaintiff came to this Court in second appeal.

2. At the motion hearing it was urged on the basis of two single Bench decisions in Velagapudi Kanaka Durga v. v. District Collector, AIR 1971 Andh Pra 310 and Mani Ram v. The State of Punjab, (1974) 76 Pun LR 735 : (AIR 1975 Punj 135), that the provisions of S. 9(3) of the Act were mandatory and if fifteen days' notice is not served on a landowner, the award of the Land Acquisition Collector cannot be sustained. In view of the importance of the matter, the case was ordered to be decided by a large Bench and that is how it has been placed before us for final disposal.

3. Before us, a preliminary objection has been raised by the learned Additional Advocate General, Punjab, that assuming S. 9(3) of the Act to be mandatory, as sought to be argued by the learned counsel for the appellant, yet no relied can be granted to the plaintiff in this suit because in spite of a short notice under S. 9(3) of the Act, he filed his claim which was considered by the Land Acquisition Collector on merits before the award was given by him and thereafter the plaintiff filed an application for reference which too has been allowed by the district Court and the plaintiff is satisfied by the enhancement as he did not file any further appeal in this Court. On these facts, it is urged that the plaintiff would be estopped from challenging the award of the Land Acquisition Collector on the ground that 15 days' notice was not given to him for filing his claim. In support of the argument, reliance has been placed on Mohammad Habibullah Sahib v. Special Deputy collector, AIR 1967 Mad 118; Brahm Sarup v. State of Haryana, 1974 Pun LJ 115 : (AIR 1975 Punj 26) and Bishna v. State of Punjab, 1980 Pun LJ 510.

4. After hearing the counsel for the parties on this preliminary matter, we find substance in the objection raised by the learned Additional Advocate General In Mohammad Habibullah Sahib's case (AIR 1967 Mad 118) (supra), a Division Bench of the Madras High Court observed as follows (at p. 121) :--

'...................... where a petitioner had already made an application for reference claiming increased compensation, he could not be permitted to challenge the acquisition itself and at the same time claim increased compensation.'

'The petitioners cannot be permitted to challenge the acquisition itself and at the same time claim increased compensation. On one hand, the petitioners accepted the compensation without representing that their land was being illegally acquired and made applications for enhancement of the same and, on the other, after passing of several months they filed the writ petition, they cannot be allowed the discretionary relief.'

In Bishna's case (1980 Punj LJ 510) (supra), the facts were that notice under S. 4 of the Act was not published in the locality simultaneously with the publication of the notification and the publication was made twenty days thereafter. On the basis of the Supreme Court decisions, the provisions of S. 4 were found to be mandatory, yet we did not allow the petitioner to challenge the notification published under S. 4 after undue delay because he filed objections under S. 5A of the Act within the prescribed period of thirty days, which were duly heard on merits. The relevant portion of the aforesaid decision is as follows:--

'............................. since the appellant had filed objections within the period of thirty days from the date of publication of the notification in the official Gazette, which were duly considered, we hold that he is not entitled to impugn the notification merely on the ground that same was published in the locality after undue delay.'

5. On the facts of the present case, we find that the aforesaid decision clearly support the preliminary objection raised by the Additional Advocate General. As observed in the opening part of the judgment, that plaintiff not only filed a claim in response to notice under S. 9(3) of the Act, but being dissatisfied with the award of the Land Acquisition Collector filed a reference application under S. 18 of the Act, which reference was allowed by the district Court and the compensation was enhanced with which the plaintiff was fully satisfied as he did not file further appeal. On these facts and circumstances, the award of the Land Acquisition Collector cannot be set aside, assuming that S. 9(3) of the Act was mandatory.

6. For the view we have taken above, it has become wholly unnecessary to go into the matter whether S. 9(3) of the Act is mandatory or not.

7. For the reasons recorded above, we do not find any merit in this appeal and dismiss the same but without any order as to costs.